Pawan Tiwari vs The State Of Bihar
2023 Latest Caselaw 3864 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.146 of 2017
      Arising Out of PS. Case No.-60 Year-2011 Thana- RASULPUR District- Saran
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Pawan Tiwari, Son of- Radhaesharan Tiwari @ Ragho Sharan Tiwari Resident of Village- Rasulpur P.S. Rasulpur, District Saran at Chapra.

                                                                   ... ... Appellant
                         Versus
The State Of Bihar                         ... ... Respondent

====================================================== Appearance :

For the Appellant/s     :       Mr. Ansul, Advocate
                                Mr. Chandra Mohan Jha, Advocate
For the Respondent/s    :       Mr. Bipin Kumar, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 21-08-2023

Heard learned counsel for the appellant and learned A.P.P.

for the State.

2. The present criminal appeal has been preferred against

the judgment of conviction dated 22.11.2016 and the order of

sentence dated 02.12.2016, passed by Sri Birendra Kumar

Mishra, Xth Additional Sessions Judge, Saran, Chapra in Sessions

Trial No. 786/2011, arising out of Rasulpur P.S. case No.

60/2011, whereby and whereunder the appellant has been

convicted for the offence under Sections 302 and 201 of the

Indian Penal Code and sentenced to life imprisonment and a fine

of Rs. 5000/- under section 302 of the Indian Penal Code, and five Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

years rigorous imprisonment and a fine of Rs. 3,000/- under

Section 201 of the Indian Penal Code, and in default of payment

of fine, the appellant has been directed to undergo additional

rigorous imprisonment of two years and one year under Sections

302 and 201 respectively of the Indian Penal Code. It was further

directed that the sentences so imposed shall run concurrently.

3. The prosecution case, as per the written report of the

informant, is that the informant is resident of village Rasulpur. On

10.06.2011, the informant's son was sitting at his shop, around 11

a.m., the appellant, of the same village, came to the shop of

informant and took his son along with him for some work. After

three hours, when the informant's son did not return then the

informant called his son on his mobile but it was found switched

off. The informant further stated that at 8.00 p.m., he met with the

appellant and asked about his son, on which he told that he got

back his son from Asahni and left him near Machhlihatta.

Thereafter, the appellant refused to say anything. The informant

suspected that after calling his son, the appellant got him

kidnapped.

4. On the basis of written report of the informant (PW 5),

Rasulpur P.S. case No. 60 of 2011 was registered under Sections

365 and 120B of the Indian Penal Code and investigation was Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

taken up. In course of investigation, Sections 364, 302 and 201 of

the Indian Penal Code were added. On completion of

investigation, a charge-sheet was submitted under sections 364,

302, 120B, 201 of the Indian Penal Code vide Charge-sheet No.

77/2011 dated 08.09.2011. The learned jurisdictional Magistrate

took cognizance of the offence. Thereupon charges were framed

against the appellant to which the appellant pleaded not guilty and

claimed to be tried.

5. During trial, the prosecution examined altogether nine

witnesses, namely, PW1 Chandra Kumar Soni, PW2 Manoj Soni,

PW3 Juganu Prasad Soni, PW4 Pradeep Kumar Gupta, PW5

Ramsudin Soni (the informant), PW6 Dr. Ravi Shankar Singh

(doctor), PW7 Ramrati Devi, PW8 Surendra Paswan, PW9 Amit

Kumar Manjhi. Prosecution has also produced exhibits as Ext. 1

-fardbeyan, Ext. 1/1 -formal F.I.R., Ext. 2 post-mortem report,

Ext. 3 signature on fardbeyan, Ext. 4 signature on inquest report,

Ext. 1/2 and 1/3 signature on inquest report. The defence has also

produced five witnesses viz. DW1 Girish Tiwari, DW2 Meena

Devi, DW3 Krishna Prasad, DW4 Farida Khatoon, DW5 Baliram

Mishra and DW6 Rajesh Pandey in support of its case.

Thereafter, the statement of the appellant was recorded under

section 313 of the Cr.P.C. After conclusion of the trial, the learned Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

Trial Court convicted and sentenced the appellant in the manner

indicated above.

6. The learned counsel for the appellant has submitted

that the trial of case suffers from several infirmities that have been

overlooked by the learned trial Court. Therefore, the impugned

judgment is not sustainable in the eyes of the law. It has been

argued that the appellant had just come to the shop of the

informant (PW 5), from where the deceased and appellant went

together to a village called Asahani for work. Afterward, they

parted ways at Macchlihatta. It has been further argued that the

time gap between the victim going missing and the recovery of

her dead body is too long to apply the 'last seen theory'. It has

been contended that the body of the deceased was recovered from

the septic tank, which was in an advanced stage of decomposition

and thus unidentifiable. Moreover, during the trial, PW 6 (the

doctor) categorically stated that it was difficult to determine

whether the dead body was male or female. The learned counsel

for the appellant has further contended that the Investigating

Officer (PW 8) carried out the investigation in a perfunctory

manner. The articles on the basis of which the prosecution

witnesses claimed to identify the dead body were neither seized

during investigation nor produced in court during the trial. Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

Furthermore, PW 8 did not verify from the neighbours of the

appellant regarding the last seen incident. It has thus been

contended that there are severe lacunae in the prosecution's case,

and the chain of circumstances does not unequivocally point

toward the guilt of the appellant. Therefore, it is argued that the

findings of the learned trial Court are legally flawed, incorrect in

terms of facts, lacking in legal reasoning, devoid of merit, and that

the judgment of conviction should be set aside.

7. On the other hand, the learned APP for the State has

submitted that the judgment of conviction and the order of

sentence under challenge require no interference, as the

prosecution has proven the case beyond all reasonable doubt. It

has been contended that the witnesses have been consistent in

their testimonies, and there are no gaps in the prosecution's case.

Further, it has been asserted that the deceased was last seen alive

with the appellant. Subsequently, the deceased went missing, and

his body was recovered from the exclusive possession of the

appellant. Additionally, it has been pointed out that all the

prosecution witnesses identified the body as that of the deceased,

rendering the opinion of PW 6 inconsequential. Furthermore, it

has been submitted that defects in the investigation by themselves

cannot be grounds for acquittal. Investigation is not the sole area Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

for judicial scrutiny in a criminal trial. The learned A.P.P. thus

submitted that in the present case, the chain of circumstances

unequivocally points toward the guilt of the appellant. There are

no gaps in the chain of circumstances, and the appellant's guilt has

been satisfactorily proven by the evidence presented during the

course of the trial. Hence, there are no infirmities in the judgment

of conviction by the learned trial Court.

8. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough examination

of the entire material available on the record, the following issue

arises for consideration in the present appeal:

"Whether the prosecution has successfully established beyond all reasonable doubt the incriminating chain of circumstances so as to hold the appellant guilty in the present case?"

9. With reference to the issue formulated above, we have

given our anxious consideration to the entire material available on

record. The present case is wholly based on circumstantial

evidence. In such cases, the precedent is well settled. The

prosecution has to knit together all the incriminating

circumstances in a cogent way that the hypothesis of innocence of

the accused is demolished and the circumstances so presented

unerringly demonstrates the guilt of the accused. The Hon'ble

Supreme Court in State of Goa v. Sanjay Thakran, (2007) 3 Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

SCC 755 in paragraph 13 of the judgment has observed as

follows:

"13.The prosecution case is based on the

circumstantial evidence and it is a well-settled

proposition of law that when the case rests upon

circumstantial evidence, such evidence must satisfy the

following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

In view of the above settled proposition of law, we now

advert ourselves to the circumstances which the prosecution

seeks to establish in the present case.

LAST SEEN

10. Upon the examination of the evidence of prosecution

witnesses, namely PW 1, PW 2, PW 5, and PW 7, it is found that

these prosecution witnesses in unison have stated in their

evidence that the appellant on 10-06-2011 at about 11:00 AM

came at the shop of the informant where the deceased was

present. Thereafter, the appellant called the deceased and asked

him to come along as he had to visit 'Asahani' for some work.

Then the deceased went along with the appellant on his

motorcycle. Since then, the deceased had disappeared. Further, it

is found that PW 5, in his deposition, has clearly stated that one

Girish Tiwari (DW 1) informed him that both the appellant and

the deceased visited him, as the appellant needed to collect

money from him. This fact was also corroborated by the

Investigating Officer (PW 8) in his testimony. Thus, these facts

unmistakably establish that the last known sighting of the

deceased was in the company of the appellant.

11. Furthermore, a meticulous review of the Post-Mortem

Report (Ext.-2) in conjunction with the deposition provided by Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

PW 6 (the attending doctor) reveals a significant observation.

The post-mortem was conducted on 18.06.2011 at 9:30 PM and it

was opined by PW 6 that death had taken place at minimum 8 to

9 days preceding the post-mortem examination. Therefore,

considering the last sighting of the deceased with the appellant,

which was at 11:00 AM on 10.06.2011, it is apparent that the

time of the deceased's demise falls within this time frame. It is

well established that in order to bring home the charges on

ground of 'last seen theory', the prosecution has the onus to

prove that the time gap since the victim was last seen together

with the accused and the subsequent recovery of her dead body is

so less that the intervention by any third person is improbable.

However, no straight jacket formula can be devised in such cases

to determine as to what will be considered a reasonable time, but

it should be established in light of the facts and circumstances of

the case that the chain of circumstances is so proximately

connected that the possibility of intervention by any other

individual within the time frame is ruled out in entirety. In this

regard, it would be relevant to refer to the decision of State of

Goa v. Sanjay Thakran, reported in (2007) 3 SCC 755 wherein

in paragraph 34, it was held as under:

"34.From the principle laid down by this Court, the circumstance of last seen together would normally be Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

relatively wider time gap would not affect the prosecution case."

Therefore, taking into account the recovery of the body

from the place (i.e. a septic tank inside the house), which was in

the exclusive possession of the appellant, wipes out the

possibility of any other person being the author of the crime

during the intervening period. Thus, in the light of the factual

matrix of the case and considering the legal position as indicated

above, we are of the considered opinion that the prosecution has

cogently established the circumstance of 'last seen' in the present

case.

RECOVERY OF THE BODY FROM APPELLANT'S

EXCLUSIVE POSSESSION

12. The most important circumstance which the prosecution

has relied upon is recovery of the deceased's dead body from the

appellant's place. From the perusal of the oral and documentary

evidence, it is evident that the body of the deceased was

recovered from the septic tank situated inside the appellant's

dwelling house. The investigating officer (PW 8), in his

deposition, has categorically stated that on June 18, 2011, he

conducted a search at the appellant's residence. During this

search, the septic tank was opened in the presence of PW 5 and

PW 2. Upon opening the tank, PW 8 witnessed the deceased's Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

body floating inside. Subsequently, the body was retrieved from

the tank. This retrieved body was positively identified by PW 2

and PW 5 as that of the deceased. Additionally, PW 1, PW 3, and

PW 7 also affirmed that they recognized the body by its clothing,

Kada (bracelet), and false teeth. Moreover, PW 9, an independent

witness in his deposition has supported the factual occurrence of

the recovery of the dead body. Thus, in light of the facts

discussed hereinabove the prosecution has discharged its burden

of proving the conspicuous recovery of dead body from the

exclusive possession of the appellant. As per Section 106 of the

Evidence Act when any fact is especially within the knowledge

of any person, the burden of proving the fact is upon him. In the

instant case, since the appellant has not given any explanation as

to how the body of the deceased came to his possession, warrants

only inference possible is that it was the appellant who has

committed the crime and in order to destroy the evidence hid the

corpse in septic tank to decompose. Moreover, there is no

material on record to show that somebody else has put the body

therein. At this juncture, we would gainfully rely on the decision

rendered by the Hon'ble Supreme Court in the case of Nagendra

Sah v. State of Bihar, reported in (2021) 10 SCC 725 wherein Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

the Hon'ble Apex Court observed the followings in paragraphs

22 & 23:

"22.Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

23.When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

Therefore, in the light of the factual discussion made

hereinbefore and considering the aforesaid view of the Hon'ble

Supreme Court in the given facts of the case, we reach to the

conclusion that conspicuous recovery of the deceased's body

from the appellant and his failure to tender any explanation is a

major link in the chain of circumstances.

FALSE AND EVASIVE REPLY BY THE APPELLANT Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

13. So far as this circumstance is concerned, we have

carefully perused the evidence of the informant (PW 5) as well as

Ext. 1 (fardbeyan). It becomes apparent from the record that on

the same day, PW5 inquired about the whereabouts of the

deceased not once, but twice. During these inquiries, the

appellant asserted that he had returned with the deceased from

Asahani and mentioned that he had dropped him off at

Machhlihatta. The appellant claimed to have no knowledge of

the deceased thereafter. However, upon careful review of the

available records, it is evident that there is no trace of

information about the deceased's whereabouts until his lifeless

body was discovered on 18.06.2011 within the septic tank of the

appellant's residence. Therefore, the appellant's assertion that he

parted ways with the deceased at Macchlihatta or Chatti stands

as a dubious fabrication aimed at dispelling any potential

suspicions. This fabricated explanation holds no credibility in

light of the fact that the deceased's location remained unknown

until the distressing discovery in the appellant's own property.

Hence, this false and fabricated explanation is an additional link

in the chain of circumstances as held by the Hon'ble Supreme

Court in the case of Deonandan Mishra v. The State of Bihar

reported in AIR 1955 SC 801.

Patna High Court CR. APP (DB) No.146 of 2017 dt.21-08-2023

14. Considering the totality of the facts and

circumstances of the case, this Court is of the considered opinion,

that the prosecution has proved all circumstances against the

appellant and the chain of circumstances is so complete which

led to irresistible conclusion that it was the appellant alone, who

had killed the deceased.

15. Accordingly, the appeal is dismissed. The judgment

of conviction dated 22.11.2016 and the order of sentence dated

02.12.2016, passed by Sri Birendra Kumar Mishra, Xth

Additional Sessions Judge, Saran, Chapra in Sessions Trial No.

786/2011, arising out of Rasulpur P.S. case No. 60/2011, is

affirmed.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Pankaj/-

AFR/NAFR                AFR
CAV DATE                10.08.2023
Uploading Date          21.08.2023
Transmission Date       21.08.2023